Discrimination
A Deeper Look into Dissonance
National Identity
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 2 December 2024

Solangene repercussions
•Can domestic courts challenge ECJ? On what grounds?
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Solangene repercussions
•Can domestic courts challenge ECJ? On what grounds?
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•(constitutional) human rights
•National identity
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•What is national identity?
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National Challenges to EU law
•Who should control the scope of EU law?
•GCC Maastricht Decision & Honeywell
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•Maastricht (BVerfGe 89,155)
•Since European Treaties adhere to the principle of conferred powers -> EU is not able to extend
its own competences
•There is a clear dividing line between legal development within the terms of the Treaties and a
making of legal rules which breaks through its boundaries and is not covered by valid Treaty Law
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•Ultra vires doctrine

National Challenges to EU law
•Thus, if European institutions or agencies were to treat or develop the Union Treaty in a way that
was no longer covered by the Treaty in the form that is the basis for the Act of Accession, the
resultant legislative instruments would not be legally binding within the sphere of German
sovereignty. The German state organs would be prevented for constitutional reasons from applying
them in Germany…
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•… in future, it will be noted as regards interpretation of enbaling provisions by [Union]
institutions …that the Union Treaty as a matter of principle distinguishes between the exercise of
a sovereign power conferred for limited purposes and the amending of the Treaty, so that its
interpretation may not have effects that are equivalent to an extension of the Treaty. Such an
interpretation of enabling rules would not produce any binding effects in Germany.

National Challenges
•i.e. threat to disapply European law that has been adopted ultra vires
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•Honeywell 2011
•Relates to Mangold
•Claimant argued that ECJ’s discovery of a European principle that prohibited discrimination on
grounds of age was ultra vires
•GFCC confirmed the relative supremacy doctrine
•Option to disapply it when the EU law is not considered to be covered by the principle of
conferral
•BUT: also presumption that Union would generally act within the scope of its competences

National Challenges – types of justifications
•National constitutional courts
•Constitutional identity
•Material core
•Rule of Law
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•How CCs react:
•Where is the European law in the hierarchy
•What constitutional system there is (diffuse – concentrated)
•Old v new member states
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National Challenges - Italy
•Costa v ENEL 1964
•Lex posterior derogate legi priori
•European law = international law
•Frontini 1973
•Confrontation with direct effect and supremacy principles
•There can be primacy, but in case of conflict of laws, it is up to Constitutional Court to decide
which law has primacy
•Primacy not from European law, but essence of A11 of the Constitution on conferral of competences
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•Simmenthal I.: Italian CC is not right and violates the concept of diffused European judiciary.
Against the effectiveness of the European law
•But: Doesn’t the diffuse system violates legal certainty?
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•Granital 1984
•Dualism, in case of conflict, the EU law prevails, but the domestic law stays intact. Only primacy
in application
•Between Solange I and Solange II
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National Challenges - France
•Matter’s dotrine: in case of the conflict of  domestic and international law, the court should aim
for conform interpretation
•If not possible, domestic law is applied
•i.e. no primacy of international law
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•Jacques Vebre decision – X Matter doctrine
•Communitarian law has unconditional primacy (only primary law)
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•State Council:
•1968 Samoules: international treaty does not have primacy over later domestic law
•1986 Smanor: a judge can review the compliance of later law with a treaty but if the law is more
detailed, it will prevail
•1989 Nicolo – same principle
•1990 Boisdet primacy of a regulation
•1992 Rothmans International France: vertical direct effect of a directive
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•Constitutional Council
•70-39 DC: refuses to review the constitutionality of founding Treaties: only a priori control
•76-71 Constitutional conformity of direct election to EP
•Limitation of sovereignty v conferral of sovereignty. Conferral not possible, temporary limitation
yes
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National Challenges - France
•France
•Changed in Maastricht I.
•Transfer of competences is possible, but it cannot be in conflict with specific areas of
constitutional law
•Material core of the Constitution
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•Areas: right to vote in regional election, monetary union, migration and asylum
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Slovak Pensions case: evolution of non-discrimination
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•Introductory thoughts:
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•Principle of non-discrimination in EU law
•Driving force of both single market and FR
•ECJ generally reluctant to make compromises
•But! Exceptions: Josemans case
•Prohibition of non-Dutch nationals from having access to Dutch coffee shops
•ECJ: the sale of soft drugs does not fall within the scope of Treaty regulation of services, but,
coffee shops also sale other products covered by the Treaty
•Restricting measures have to be justified on grounds of public order
•Discriminatory, but justifiable
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•Test Achats case (different insurance rates on the grounds of sex)
•ECJ requires same insurance rates for car insurance or life insurance
•Women live longer….
•Different rate of accidents
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Gender directive 2004/113/EC
A 5.2 allowed MS to permit proportional differences in insurance premiums and benefits based on
gender as a determining factor and based on stat data.
Test Achats is a consumer association, argues that the transposing Belgian law violates Charter.
ConCourt-> prelim.Q
CJEU:
-Indefinite derogations, as allowed by A 5.2 are incompatible with EU Charter.
-A 5.2. is invalid

Non-discrimination
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•Introductory thoughts on discrimination:
•Treaties: elimination of disadvantages of nationalities on EU market
•Amsterdam revision of A8 (3) + legislative competence of EU in new areas
•2000 Revolution in EU anti-discrimination law
•Amsterdam treaty
•Two Equality Directives (2000/43 RED and 2000/78 FED)
•New grounds for discrimination
•Race
•Ethnicity
•Religion
•Sexual orientation
•Age
•Disability
•Lisbon Treaty and Charter
•Equality vs Equal Treatment
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Sometimes you are discriminated because you are treated differently
Sometimes you need to be treated differently in order to not be discriminated

Evolution of discrimination cases
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•2005 Mangold (discrimination on the ground of age is a general principle of EU law)
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•Coleman (discrimination by association with a disabled son)
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•Feryn (2008) race equality
•Maruko (2008) sexual orientation as grounds for non-discrimination
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•Commission v Hungary (retirement of Hungarian judges and prosecutors)
•Commission v Poland (no sitting judge can be removed on the grounds of age)
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Mangold v Helm:
-Landmark case on age discrimination
-56 y old German, entered into a fix-term contract. German law permitted fixed-term contracts for
workers over 52. Aim: promotion of employment among older. Mangold: unjustified age discrim.
CJEU:
-General principle
-National courts need to ensure its full effectiveness even if the transposition period of the
directive did not expire
-Violation
Coleman
-Legal secretary in London
-2002 birth to a son with severe disabilities, primary caregiver
-Her employer refused to accommodate her caregiving responsibilities and flexible working
arrangements granted to other employees (plus derogatory remarks)
CJEU
-Equal treatment in directive 78 on occupation is not limited to disabled individuals
-Extended the scope of EU anti-discrimination to associative discrimination
Feryn
-Refusal to hire individuals of certain racial or ethnic origin (immigrants) citing customer
preferences, D 2000/43
-Direct D in recruitment.
-Absence of a complainant does not preclude a finding of discrimination
Maruko
The life partner of Mr. Maruko (they entered into life partnership, regulation of which is provided
by German law) was a member of a compulsory occupational pension institution connected to his
workplace. After the death of Mr. Maruko’s partner he applied for a widower’s pension. The
previously mentioned institution refused to pay the pension to Mr. Maruko as he was not the spouse
of the deceased.
Does the pension qualify as pay? Yes
But German courts need to determine whether under G Law registered life partnership is comparable
to marriages
So yes, pension benefits must be equally accessible to same-sex partners, if their status is
comparable

Slovak Pensions case
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•Constitutional complaint of a Czech claimant (previously working for CS train rails 1969-1993 in
Slovakia).
•1992 Both countries had to establish which state would be responsible for paying the pensions for
former CS citizens -> Agreement: the authority with competence to grant pension will be determined
by the State of residence of employer
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•Core issue: Slovak pensions in 1990s are significantly lower
•! What about people who lived in the Czech part but their employer resided in the Slovak part? ->
they receive Slovak (lower) pensions while living in CR
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•CCC: this violates the right to adequate material security in old age, the Czech authorities have
to pay a special increment to Czech citizens to compensate their lower pensions from Slovakia
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Slovak Pensions case
•SAC never accepted the CCC reasoning -> Judicial war
•The decision after Landtova is the 17th in line!
•SAC: Such special increment is incompatible with EU law – preliminary question leading to C-399/09
Landtová
•Is it a discrimination case? The CCC’s findings should apply to any EU citizen retiring in CR
after its accession to EU, working in CSR before the dissolution
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EU Law, FR, and dissolution of the Federation
•CJEU: the CCC’s case law is in violation of discrimination on the grounds of nationality, but
could be accepted if the same increment would be paid also to other than Czech citizens (within the
EU)
•CJEU found “no evidence justifying such discrimination”
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•The Czech reaction:
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•Czech legislator amends the law 155/1995 on retirement pensions, prohibiting ANY special increment
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•CCC argues (Holubec case) that it is the domestic constitutional court who is the sovereign
authority in protection of constitution, even against the excesses of EU institutions.
•The coordination of retirement pensions within the EU is a very different question than the one
between CR and SR –post federal settlement. There is not cross-border movement or element. The CJEU
acted ultra vires (also refused to hear out the CCC)

EU Law, FR, and dissolution of the Federation
•The failure to distinguish legal relationships arising from the dissolution of a state with a
uniform social security system from legal relationships arising from the free movement of persons
in the European Communities, or the European Union, for social security systems of the Member
States, is a failure to respect European history; it is comparing matters that are not comparable.
For this reason it is not possible to apply European law, ie. the regulation, to the Czech
citizens’ claims stemming from social security. Following the principle explicitly stated in its
judgment [Lisbon Treaty], it is not possible to do otherwise than to find in relation to the
consequences of the [Court of Justice’s judgment in Landtová] for similar cases that in its [the
Court of Justice’s] case the situation where an act of an institution of the EU exceeded the
competences transferred to the EU by virtue of Article 10a of the Czech Constitution occurred, that
an act ultra vires has occurred.

EU Law, FR, and dissolution of the Federation
•Behind the scenes
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•The CCC refused to ask another preliminary question, instead, it attempted to invent its own way
of talking to the CJEU – sent in an amicus curiae
•The Registry refused the letter and sent it back to the CCC: The members of CJEU do not exchange
correspondence with third parties
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•This angered and insulted the CCC
•CCC also argued that it should have enjoyed a fair trail

EU Law, FR, and dissolution of the Federation
•Komarek: The case is the reflection of continuing undermining of the authority of highest national
judicial bodies by incorporating lower levels into the system of EU courts and giving these lower
courts a European mandate
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•European mandate = lower courts can choose who their superior is
•Instrumental use -> to circumvent  the limitations of their own judicial system
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•In 2012, the Czech case seen as an isolated accident, not a calculated strategy of CCC
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•Still, a culture of disobedience
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•Chalmers:  dialogue with constitutional courts is much vaunted in the literature about it, ... in
the last two years its central interventions have been to refuse to take submissions from one
country’s constitutional court and to deny the French Constitutional Council its traditional role
of assessing whether French laws violate the French Constitution, if such an assessment in any way
touches upon EU law

EU Law, FR, and dissolution of the Federation
•Skouris:
•In this case the Supreme Administrative Court received an answer [from the ECJ] and followed it in
its own decision. The Constitutional Court reviewed the case and decided differently. So it is
primarily a problem on the level of Czech courts. The ECJ did what it was supposed to and answered
the questions submitted. If there are some problems in the Czech Republic, it is not our task to
solve them. And I would not like to comment on them further. Th e responsibility for the final
decision in the case always rests solely with the national court.




Ultra vires 2
Germany after Lisbon
FCC ruling of 5 May 2020 on the partial unconstitutionality of the ECB’s PSPP program (Public
Sector Asset Purchase Programme)
Accepts the primacy of Treaties over Constitution, but classifies an individual secondary act of EU
institution as ultra vires
Follow-up: Commission filed infringement proceedings against Germany: Germany has not only violated
fundamental principles of EU law (autonomy, primacy of application, effectiveness, uniform
applicability of EU law). It has also interfered with the judicial mandate of the ECJ)
FCC should not have declared Weiss decision to be ultra vires act without referring the matter back
to ECJ – violated primacy of EU law.
Interference in the independence of a MS’s court
ECJ will be a judge in its own case

Ultra vires 2
The Court of Justice of the European Union exceeds its judicial mandate, as determined by the
functions conferred upon it in Article 19(1) second sentence of the Treaty on European Union, where
an interpretation of the Treaties is not comprehensible and must thus be considered arbitrary from
an objective perspective. If the Court of Justice of the European Union crosses that limit, its
decisions are no longer covered by Article 19(1) second sentence of the Treaty on European Union in
conjunction with the domestic Act of Approval; … these decisions lack the minimum of democratic
legitimation necessary under Article 23(1) second sentence in conjunction with Article 20(1) and
(2) and Article 79(3) of the Basic Law.

Ultra vires 2
Where fundamental interests of the Member States are affected, as is generally the case when
interpreting the competences conferred upon the European Union as such and its democratically
legitimated European integration agenda (Integrationsprogramm ), judicial review may not simply
accept positions asserted by the European Central Bank without closer scrutiny.
The combination of the broad discretion afforded the institution in question together with the
limited standard of review applied by the Court of Justice of the European Union clearly fails to
give sufficient effect to the principle of conferral and paves the way for a continual erosion of
Member State competences.
German constitutional organs, administrative bodies and courts may participate neither in the
development nor in the implementation, execution or operationalisation of ultra vires acts. This
generally also applies to the Bundesbank.

Ultra vires 2
ECJ Press release
In general, it is recalled that the Court of Justice has consistently held that a judgment in which
the Court gives a preliminary ruling is binding on the national court for the purposes of the
decision to be given in the main proceedings. 1 In order to ensure that EU law is applied
uniformly, the Court of Justice alone – which was created for that purpose by the Member States –
has jurisdiction to rule that an act of an EU institution is contrary to EU law. Divergences
between courts of the Member States as to the validity of such acts would indeed be liable to place
in jeopardy the unity of the EU legal order and to detract from legal certainty. 2 Like other
authorities of the Member States, national courts are required to ensure that EU law takes full
effect. 3 That is the only way of ensuring the equality of Member States in the Union they created

TEU Article 19
Article 19
1.   The Court of Justice of the European Union shall include the Court of Justice, the General
Court and specialised courts. It shall ensure that in the interpretation and application of the
Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law.
3.   The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the
interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.

PolExit?
•Poland: Constitutional Tribunal decision of 7 October 2021
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•Primacy of EU law
•Application of PM for a judicial review of EU Founding Treaties with Polish Constitution
•Retaliation for CJEU Grand Chamber ruling from March 2021 in C-824/18 on appointment of judges to
the Supreme Court of Poland
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•Targets mostly compatibility of A19.1 and 19.2 TEU with the Constitution (remedies sufficient to
effective legal protection in fields covered by EU law)
•Activist decision (review beyond the scope of the PM application)
•Tribunal interprets the EU law – exclusive competence of the CJEU
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PolExit?
•Poland: Constitutional Tribunal decision of 7 October 2021
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•Unlike the German ruling, it calls into question the cornerstone of European integration
•Sweeping rejection of the primacy of European law
•Establishes the unconstitutionality of central primary law norms: A1 and 19 TEU
•Poor reasoning, does not address harmonization or reconciliation of EU law and national
constitution
•Blanket primacy of Polish constitution
•Effectively denies any competence of the EU
•Denies national judges power to review the conformity
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PolExit?
•Argues that questioning of EU institutions of the breach of Polish statutes goes beyond
competences conferred to EU (organisation of the judiciary)
•BUT: the scope of competences transferred to EU includes the obligation of MS to establish
remedies sufficient to ensure effective legal protection of the EU law application (a.19.1)
•Also, everyone, whose R&F guaranteed by EU law are violated has the right to effective remedy
before a tribunal (meaning domestic one, not CJEU)
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•Independence of judges is prerequisite of this
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The Polish case
•The supremacy of Polish Constitution was already established (K 18/04, K 32/09, SK 45/09)
• two autonomous legal orders exist side by side, they interact and potential conflict is not
excluded
•In case of a collision, authorities should respect the autonomy of both legal orders, but they
CANNOT recognize the supremacy of EU norm over the Polish constitutional norm
•Nor can they replace the constitutional norm with a Union norm
•Friendly interpretation of EU law cannot go contrary to express wording of constitutional norms
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•This all does NOT mean that Poland cannot  function in EU as a sovereign and democratic state, or
the Constitution ceased to be the supreme law of Poland (as argued in K 3/21)

Dissonance in Romania
•Even more extreme
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•AFJR case
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•Romanian Constitutional Court 8 June 2021
•Pitești Court of Appeal – one of the national courts that addressed the preliminary requests to
the ECJ – decided that, in accordance with the ECJ ruling, the Special Section for investigating
criminal offences within the judiciary  (SIIJ) is no longer competent to investigate a case brought
before it.
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•Retaliation of RCC: decision on a referral of unconstitutionality of several articles from the Law
on the judicial organization that pertain to the SIIJ. The Decision 390/2021 is a hallucinating
succession of legal nonsense, in which the Constitutional Court literally renders the ECJ judgment
devoid of any effect in respect of national courts and practically forbids the latter to apply EU
law and disregard contrary provisions of the national legislation
•HOW?

Dissonance in Romania
•1. RCC comes to an opposite finding on the compatibility of SIIJ with rule of law as the CJEU
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•2. national judge is competent to disregard conflicting domestic provision that is contrary to EU
law
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•3. BUT: EU law has no primacy over Romanian constitution
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•4. If ConCourt reviews domestic provision (constitutional review) – it triggers the Constitution,
which is hierarchically above the EU law. Hence, any law assessed as constitutional receives
constitutional quality and is above the EU law
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•….

Dissonance in Romania and the end of CVM
•22 November 2022 – early Christmas present for Romania, ECom terminates the CVM
•(Bulgaria fulfilled all benchmarks by 2019)
•Last reporting period: 12 recommendations in 2017
•Same year, new period of RoL backsliding under Social Democrats
•EC adds more recommendations
•In 2019, Dragnea, leader of Social Democrats, loses power and is sentenced to prison for the abuse
of power
•National Liberal Party comes to power and reforms the judiciary – EC seems happy (2021)
•Romanian judges (and Venice Commission) argues that corruption was not solved
•DNA powers transferred to new Section which soon collapsed under the backlog
•Overuse of emergency procedures since 2020
•Judicial independence: problematic with prosecutors, and GP (concentration of powers against
subordinated prosecutors)
•Primacy of EU law: CCR consistently upholds controversial justice reforms, preventing national
courts from enforcing EU law where it requires the disapplication of a national norm that is
declared in accordance with the constitution.
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